JUDGMENT
Mallick, J.
1. Second appeal arises at the instance of the plaintiff/appellant-landlord against the Judgment and decree dated 17.2.86 passed by the learned Assistant District Judge, 3rd Court at Howrah in Title Appeal No.2 of 1985 reversing those dated 26.11.84 passed by the learned Munslf, Second Court, Howrah in Title Suit No. 382 of 1981. The aforesaid suit was brought by the plaintiff-landlord against the defendant-tenant for eviction from the suit premises on grounds of default, causing waste and damage to the suit premises and of reasonable requirement for own use and occupation under the respective provisions of section 13 (1)(b), (11) and (1) of the West Bengal Premises Tenancy Act, hereinafter referred to as the Act. The learned Munsif rejected the grounds under section 13(1)(b) and (I) of the Act but decreed the suit one ground (11). The suit premises is at 45 Brojanath Lahlri Lane. P.S. Shlbpur, District Howrah consisting of two bed rooms, a kitchen, privy and a bath. The plaintiff’s case of reasonable requirement under section 13(1)(11) is to be found in paragraph 4 of the plaint. The defendant’s case against the reasonable requirement of the suit premises by the plaintiff is to be found in paragraph 8 of the written statement. According to the plaintiff/appellant his present accommodation in the ancestral house at Dharsa, P.S. Jagacha is too insufficient to accommodate his family. It is his case that in the ancestral
house he resides in one room which has been allotted to him by way of partition amongst him other brothers and his son has attended marriagable age but due to dearth of accommodation the marriage cannot be settled. The defence is that the plaintiff has inherited a big palaclal building from his father at Dharsa where he has been residing with his family without any need for the suit premise’s. It is the further case of the defendant that the plaintiff is not the absolute owner and landlord of the suit premises. The trial court on the basis of the oral and documentary evidence has held that the plaintiff is the absolute owner of the suit premises at 45 Brojonath Lahiri Lane. The learned trial court has found that the land at premises 45 Brojonath Lahlri Lane was obtained by the plaintiff by registered deed of partition dated 14.8.64 as per Ext.5. The suit house was constructed later on and the learned trial court has observed that the municipal tax receipts and asessment papers stand in the name of the plaintiff. The trial court has found that the evidence of the plaintiff i.e. the owner of the suit premises has gone unchallenged on the side of the defendant and accordingly he has held that the plaintiff is the owner of the suit premises. It appears from the trial court record that at the time of trial there were changes in the family of the plaintiff and the admitted position is that the plaintiff at the time of trial has been residing in his ancestral house at Dharsa with his family consisting of himself, his wife, his son and son’s wife. It is also undisputed that his daughter has been given into marriage who occasionally visits her father’s house. The trial court has also found on evidence that the Dharsa house consists of 7 rooms of which 5 are bed rooms and one is a store room and other is a kitchen. From the evidence on record the trial court has found that the plaintiff has been occupying only one bed room in the ancestral house and the 4 other bed rooms are occupied by his 4 brothers separately. The trial court has also taken note of the fact that the plaintiff case (sic) partition of the ancestral house has not been pursued at the time of the trial, on the other hand, evidence has been laid that by mutual arrangements the plaintiff and his 5 brothers have been occupying one bed room each in the ancestral house. It is also in evidence that the plaintiff’s three brothers do not reside at Dharsa and they have kept three rooms under lock and key. In the ancestral house he and his another brother P.W.2 Probodh Chandra Khan occupy one bed room each. Even though the story of partition has failed, the learned trial court has come to a conclusion on the basis of the evidence on record that the plaintiff’s share in the ancestral house is not more than 1 /5th and as such he is at best entitled to one bed room in the said house which he is actually occupying on mutual arrangement. The learned trial Judge on considering the size of the plaintiffs family and the accommodation available to him has come to a definite finding that the present accommodation of the plaintiff is not sufficient. The trial court has also found that the plaintiff is not possessed of any suitable alternative accommodation elsewhere except the suit premises. The trial court has come to the conclusion that considering the size of the family the plaintiff requires at least two bed rooms, one kitchen, one bath and one privy which accommodation is exactly available in the suit premises. The learned trial court has rejected the defence plea that the evidence and the pleading on the side of the plaintiff are at variance so far as partition is concerned. The learned trial
Judge has also considered the change of circumstances during the pendency of the suit causing enlargement in the plaintiff’s family. Accordingly the trial Judge decreed the suit. On appeal preferred by the present respondent/defendant, the First appeal court has held that ownership of the plaintiff in respect of the suit premises is admitted. The appeal court has concurred with the finding of the trial court in this respect. The First appeal court has held in concurring with the trial court that the plaintiff is the owner of the land and also the owner of the suit premises standing thereon. But the First appeal court has reversed the decree of eviction on the ground of reasonable requirement for own use and occupation for the reason that the plaintiff has failed to prove the fact of partition in respect of his ancestral house at Dharsa. The learned Additional District Judge has disbelieved the plaintiff’s evidence of allotment of 5 rooms to each of the 5 brothers in the ancestral house by amicable arrangement among them. The appeal court’s findings may be quoted below :–
the other hand, the defendant who had occasions to visit this house deposes that the plaintiff possesses 4 rooms in the house. …..
the plaintiff in his plaint made out the case that he got only one room in his ancestral house by partition. Plaintiff could not show any scrap of paper in support of his contention. On the other hand his own witness says that there was only mutual agreement. We also find from evidence that the plaintiff resides on his ancestral house which is a two storied building consisting of 7 rooms. In absence of any specific evidence as to partition and allotment of one room of the plaintiff. We cannot in any way say that the plaintiff possesses only one room in the ancestral house ….. The plaintiff also did not take out any local
inspection to add support regarding paucity of his accommodation. ….. There are only 6 persons to live in it Including the 2
members of his other brothers. ….. In the circumstances
a two storied building having 7 rooms for 6 persons seem to be quite sufficient”.
2. Accordingly, the learned First Appeal Court set aside the Judgment and decree of the trial court and dismissed the suit.
3. In the present second Appeal it has been contended by Mr. Roychowdhury the learned counsel appearing for the appellant landlord that the learned First Appeal Court in dismissing the plaintiffs suit by reversing the trial court’s decree has applied wrong tests and its findings are vitiated by surmises arid conjectures and the learned First Appeal Court has not taken into consideration the material evidence on record on the side of the plaintiff. Mr. Roychowdhury has furlher contended that there was no reason for the First Appeal Court to take exception to the fact that there was no prayer for local inspection on the side of the plaintiff. It must be noted here that in a second appeal the evidence on record is not to be reappreclated unless there is scope for Intervention under section 103 of the Civil Procedure Code. Mr. Roychowdhury has placed reliance upon a Supreme Court decision (Budhwantt and another, v. Gulab Chand Prasad,). It has been held there that where the trial court on basis of evidence before it found that the landlord was in bonaflde requirement of the disputed premises for the
business requirement of the members of the Joint family but the appellate court reversed that finding on baseless assumptions and wrong principles of law, the High Court in second appeal is Justified in setting aside the finding of the appellate Judge even though it was factual in character. The important part of the aforesaid decision of the Supreme Court may be quoted below :–
is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding”,
4. The aforesaid decision of the Supreme Court applies with all force to the present case. It appears from the Impugned Judgment that the First Appeal Court has laid unnecessary and unwarranted stress upon the plaintiffs deviation from the plaint case that he got one room in his ancestral house by way of partition while in bis evidence his case is that he got only one room by way of amicable arrangement there among his brothers. The question was what was the accommodation available, to the plaintiff in his ancestral house, be it by way of partition or by amicable arrangement. The plaintiff examined himself on oath he was corroborated by the evidence of his brother Probodh Chandra Khan, P.W.2 and his nephew Dr. Pradyut Kumar Khan, P.W.3. All of them have stated unequivocally on oath that by way of amicable arrangement the plaintiff has been occupying only one bed room in the ancestral house. It is also the unchallenged evidence of the plaintiff that in the ancestral house in his bed room his son and daughter-in-law reside while he and his wife live in the dalan. P.W.3 has also staled in cross-examination that the plaintiff now resides in the covered varandah in the first floor of the ancestral house while the plaintiffs son reside in the first floor room. It seems that the First Appellate Court has been overwhelmed by the evidence of the defendant who deposes on the present accommodation of the plaintiff available in the ancestral house. In his chief he denies that the plaintiff resides only one room in the ancestral house. In his cross-examination he says as follows:– “I visited the paternal house of the plaintiff on different occasions. I last visited that house in May, 1931. I was Invited in the marriage ceremony of the daughter of the plaintiff. ….. I saw the
plaintiff to occupy 4 rooms. I found his articles in 4 rooms plaintiff’s told me that he was occupying 4 rooms”. The quality of this evidence is explicit and it can only be said that the learned First Appeal Court should not have relied upon this baseless evidence to reject the evidence on the side of the plaintiff. It goes against all human sense of reason to plea that a landlord would take his tenant inside his house and show him 4 room there and tell him that he was occupying 4 rooms. No ordinary prudent man can accept the evidence of the defendant that he could Identify the articles of the plaintiff in 4 rooms, even though the defendant happens to be an M.A. In Indian History and Culture and doing research work in that field. It has been pointed out by Mr. Roychowdhury that the learned appeal court has not at all considered the evidence of the plaintiff’s brother P.W.2 and his nephew P.W.3 who state on oath that the plaintiff is occupying only one
bed room in the ancestral house. In that respect Mr. Roychowdhury is correct. The First Appeal Court has not properly considered the findings of the trial court on the plaintiff’s evidence regarding his present accommodation and his requirement of the suit premises for his own use and occupation Including the occupation of his married son. Under the circumstances I must hold that the First Appeal Court has reversed the findings of the trial court on the plaintiffs reasonable requirement of the suit premises for own use and occupation coupled with the fact that the plaintiff is not possessed of any suitable accommodation elsewhere entirely on baseless assumptions, wrong principles of law and worse from of conjectures and surmises. Accordingly following the principles laid down by the Supreme Court in Budhwanti’s case (supra) I must hold that the impugned Judgment and decree passed by the First Appeal Court cannot be sustained and must be set aside restoring the judgment and decree passed by the trial court.
5. Mr. Banerjee the learned counsel appearing for the respondent has tried to challenge the finding of both the courts below regarding the plaintiff’s ownership of the suit premises. It may be noted that the respondent-tenant has not filed any cross objection to the appeal court’s finding of ownership of the suit premises in favour of the landlord-appellant. The ownership being a question of fact. In my opinion, cannot be reagltaled before this High Court in second appeal. There is nothing to show that the above findings of the courts below ore perverse or otherwise bad in law based on no evidence or are vitiated by non-consideration of material evidence. The defence before the trial court was, as I have already noted, that it is not a fact that the plaintiff is the absolute owner and landlord of the suit premises. No Independent evidence has been adduced by the defendant in this regard. On the other hand, he has admitted by payment of rent and deposit of rent that the plaintiff is his landlord. In his evidence before the trial court the defendant denies that the suit house has been purchased by the plaintiff which is nobody’s case. Under the circumstances, I do not find any lawful reason to interfere with the concurrent findings of both the courts below that the plaintiff is the absolute owner of the disputed premises. The evidence on record are sufficient to prove that the plaintiff is the 16 annas owner of the disputed premises. There is no substance in the appeal which must fall. The instant second appeal be dismissed on contest. No order as to costs. The impugned Judgment and decree passed by the First Appeal Court are set aside and those passed by the trial court are hereby restored. The LCR be sent down at once.
6. Appeal dismissed on contest